Section 156 (3) Cr.P.C.; K.S. Balasubramanian, Kerala State Police Chief Vs. Biju Kochupaul [Kerala High Court, 30-06-2016]

Criminal Procedure Code, 1973 РSection 156 (3) РCan the Special judge, after dismissing that part of the complaint as against some of the respondents, invoke the power under Section 156(3) Cr.P.C., as against the rest of the respondents? Held, A complaint is filed by arraigning 15 respondents. The court below has applied its mind and traced out that some of the respondents are not liable to be proceeded against. Precisely, the court below has found that no criminal liability can be fastened to those respondents. Therefore, the application of mind by the court below can only be deemed to be the procedure contemplated under Chapter XV Cr.P.C. At the same time, it is a fact that the court below has not even cared to examine the complainant on oath under Section 200 Cr.P.C. Even without examining the complainant on oath, the court below has proceeded with the matter and precisely conducted an inquiry and found that certain respondents were not liable to be proceeded against. Thereafter, it is strange to note that the court below has decided to order a quick verification in the matter as far as the other respondents are concerned. Therefore, it is evident that after invoking the powers under Chapter XV Cr.P.C., the court below has reverted back to the stage of Section 156(3) Cr.P.C., which is quite impermissible as per law.

Section 156 (3) Cr.P.C.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

B. KEMAL PASHA, J.

Crl.M.C. No.2242 of 2015

Dated this the 30th day of June, 2016

ORDER DATED 25-03-2015 IN CRL.MP 434/2015 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, THRISSUR

PETITIONER(S)/1ST RESPONDENT

K.S. BALASUBRAMANIAN, KERALA STATE POLICE CHIEF, POLICE HEAD QUARTERS, VAZHUTHAKKAD, THIRUVANANTHAPURAM.

BY ADVS.SRI.M.K.DAMODARAN (SR.) SRI.N.NANDAKUMARA MENON (SR.) SRI.P.K.VIJAYAMOHANAN SRI.GILBERT GEORGE CORREYA SRI.NISHIL.P.S. SRI.J.VIMAL SRI.ANTONY ROBERT DIAS KUM.P.K.RESHMA (KALARICKAL)

RESPONDENT(S)/PETITIONER & STATE

1. BIJU KOCHUPAUL

2. STATE OF KERALA, REPRESENTEED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031

R2 SENIOR BY PUBLIC PROSECUTOR SRI.C.RASHEED

O R D E R

Can the Special judge, after dismissing that part of the complaint as against some of the respondents, invoke the power under Section 156(3) Cr.P.C., as against the rest of the respondents? This is precisely the question to be decided here.

2. This matter relates to the ill-famed Chandra Bose murder case. Alleging that the then DGP of the State, who is the petitioner herein, had extended some favours to the accused in the case and had thereby committed criminal misconduct, the present complaint was filed before the Court of the Enquiry Commissioner and Special Judge (Vigilance), Thrissur.

3. Apart from the petitioner, some other respondents were also arraigned as respondents in the complaint. The court below has passed the impugned order in the form of Annexure-II, by applying its mind in the matter and by concluding that specific allegations were not raised against respondents 2, 3, 6, 7 and 14 in the complaint, and therefore, as far as the said respondents were concerned, any further proceedings were not required. The court below, through the impugned order, has ordered a preliminary inquiry into the allegations against respondents 1, 4, 5, 8 to 13 and 15 in the complaint. The 1 st respondent in the complaint is the present petitioner.

4. Heard learned Senior Counsel for the petitioner Sri.M.K.Damodaran and Sri.N.Nandakumara Menon, and the learned Director General of Prosecutions.

5. Both the learned Senior Counsel for the petitioner have raised a question of law in the matter. It has been argued that, here is a situation wherein the court below has reverted back to the stage of Section 156(3) Cr.P.C., after invoking the powers under Chapter XV Cr.P.C.

6. The aforesaid argument forwarded by the learned Senior Counsel seems to be perfectly correct. A complaint is filed by arraigning 15 respondents. The court below has applied its mind and traced out that some of the respondents are not liable to be proceeded against. Precisely, the court below has found that no criminal liability can be fastened to those respondents. Therefore, the application of mind by the court below can only be deemed to be the procedure contemplated under Chapter XV Cr.P.C. At the same time, it is a fact that the court below has not even cared to examine the complainant on oath under Section 200 Cr.P.C. Even without examining the complainant on oath, the court below has proceeded with the matter and precisely conducted an inquiry and found that certain respondents were not liable to be proceeded against.

7. Thereafter, it is strange to note that the court below has decided to order a quick verification in the matter as far as the other respondents are concerned. Therefore, it is evident that after invoking the powers under Chapter XV Cr.P.C., the court below has reverted back to the stage of Section 156(3) Cr.P.C., which is quite impermissible as per law. An identical situation was dealt with by the Apex Court in the decision in

CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd. and Another [(2005) 7 SCC 467]

wherein it was held that if the Magistrate once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of the power under Section 156(3) Cr.P.C.

8. In this particular case, it is evident that the court below, has even though not mentioned that the court below has conducted an inquiry, in fact, the court below has dismissed that part of the complaint relating to respondents 2, 3, 6, 7 and 14 in the complaint, by exercising the powers contemplated under Chapter XV Cr.P.C. When the court below has finally decided the matter relating to some of the respondents and such respondents were absolved from criminal liability, and has decided to proceed against the petitioner and some other respondents, it is as good as invoking the power of inquiry as contemplated under Chapter XV Cr.P.C. Only through an inquiry, the court below could have decided to avoid some of the respondents from further proceedings. Such a dismissal of the complaint relating to some of the respondents could only one under Section 203 Cr.P.C. At the same time, the court below could not have entered such a dismissal without recording the statements of the complainant, and witnesses, if any. Only after considering such statement/statements, the court below could have passed such an order of dismissal under Section 203 Cr.P.C..

9. The entire exercise made by the court below in this matter is per se illegal. The court below ought not have absolved some of the respondents from criminal liability and thereafter forwarded the complaint for quick verification or investigation, as the case may be, under Section 156(3) Cr.P.C. The court below, after invoking the powers under Chapter XV Cr.P.C., could not have reverted back to the stage of Section 156(3) Cr.P.C. again in the very same complaint. Matters being so, Annexure-II order passed by the court below is liable to be quashed.

In the result, this Crl.M.C. is allowed and Annexure-II order passed by the court below is quashed.